THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Bualuay v. Rano ,
9 FSM Intrm. 548 (App. 2000)

[9 FSM Intrm. 548]

KOTARO BUALUAY,
Appellant,

vs.

ARCHER RANO and NUII RANO,
Appellees.

APPEAL CASE NO. C1-1999

WRIT OF CERTIORARI

Granted:  October 13, 2000

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCE:
For the Appellant:     Wesley Simina, Esq.
                                    P.O. Box 94
                                    Weno, Chuuk FM 96942

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HEADNOTE
Appeal and Certiorari ) Decisions Reviewable
     When it appears that a case comes before the FSM Supreme Court appellate division as a final decision entered by the Chuuk State Supreme Court appellate division, the review of such a decision may be had before the FSM Supreme Court appellate division.  Bualuay v. Rano, 9 FSM Intrm. 548, 549 (App. 2000) .

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

to:   chuuk state supreme court appellate division

     Kotaro Bualuay petitions the Appellate Division of the FSM Supreme Court to grant certiorari and review the February 1, 1999 Order issued from the Chuuk State Supreme Court's Appellate Division in Bualuay v. Rano, 9 FSM Intrm. 39 (Chk. S. Ct. App. 1999).  In that Order, the Appellate Division of the Chuuk State Supreme Court affirmed an order entered by the Chuuk State Supreme Court's Trial

[9 FSM Intrm. 549]

Division on May 3, 1996, see Bualuay v. Rano, CSSC-CA No. 189-95 (May 3, 1996), concerning a determination of ownership in land known as "Mochikis," located at Mechitiw, Weno Municipality, Chuuk State.

     On the record submitted by the petitioner Kotaro Bualuay, it appears that this case comes before us as a final decision entered by the Chuuk State Supreme Court's Appellate Division.  Accordingly, the review of such a decision may be had before the FSM Supreme Court's Appellate Division.

     Upon consideration of the appellant's motion, the FSM Supreme Court Appellate Division hereby grants the hereby grants Plaintiff-Appellant's petition for a Writ of Certiorari in the above-captioned case, pursuant to Article XI, section 7 of the FSM Constitution and Article VII, Section 4 of the Chuuk Constitution.

     Accordingly, you are hereby directed to certify and return to this Court the record in Chuuk State Supreme Court Civil Appeal No. 07-96 for review by this Court.  The appellant's petition for a writ of certiorari shall constitute his notice of appeal.  The appellant shall have ten days from the date of service of this Order to file his notice of issues on appeal and request for transcripts pursuant to FSM App. R. 10(b).

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CONCURRENCE
RICHARD H. BENSON, Associate Justice:
     I join the court in issuing the writ of certiorari.  I write separately to touch on a matter that the writ's issuance does not fully address ) our standard of review of a petition of certiorari from a litigant in the Chuuk State Supreme Court appellate division.  The standard of review used should be either explicit or apparent in all appellate decisions.

     Article XI, section 7 of the FSM Constitution sets forth our appellate jurisdiction. The first sentence of that section permits, among other things, our review of "cases heard in state and local courts if they require the interpretation of th[e FSM] Constitution, national law, or a treaty."  FSM Const. art. XI, 7.  This appeal does not appear to be from such a case.

     Our jurisdiction over other appeals from Chuuk State Supreme Court decisions derives from the second sentence of article XI, section 7 of the FSM Constitution, which states that "[i]f a state constitution permits, the appellate division of the Supreme Court may review other cases on appeal from the highest state court in which a decision may be had."  The Chuuk Constitution permits such other appeals.  Chk. Const. art. VII, 4 ("Decisions of the appellate division of the State Supreme Court may be appealed to the Supreme Court of the Federated States of Micronesia, whose decisions are final.").  The Chuuk Constitution took effect on October 1, 1989.  Chk. Const. art. XV, 1.

     The Chuuk State Judiciary Act of 1990 directs that such appeals be made by writ of certiorari in civil cases.  Chk. S.L. No. 190-08, 39.  No provision in the Chuuk Constitution permits the Chuuk Legislature to limit, narrow, or restrict the nature of the cases which may be appealed to the FSM Supreme Court appellate division from the Chuuk State Supreme Court appellate division.  The Chuuk Constitution does, however, limit the manner an appeal proceeds by explicitly providing that appeals to the FSM Supreme Court appellate division must be from final decisions of the Chuuk State Supreme Court appellate division.  Chk. Const. art. VII, 4.  Therefore I conclude that our review of a petition for a writ of certiorari is limited to determining whether the appeal is from a final decision of the Chuuk

[9 FSM Intrm. 550]

State Supreme Court appellate division.  I reach this conclusion because "legislative acts are presumed constitutional," Truk v. Hartman, 1 FSM Intrm. 174, 181 (Truk 1982), and because, where possible, courts avoid selecting interpretations of a statute which may bring that statute's constitutionality into doubt ) courts prefer a construction that does not raise a serious doubt of constitutionality.  In re Otikicky, 1 FSM Intrm. 183, 190 & n.6 (App. 1982), rev'd on other grounds, 8 TTR 295 (App. 1983); Suldan v. FSM (II), 1 FSM Intrm. 339, 357-58 (Pon. 1983).  A standard of review limited to determining whether the appeal is from a final judgment is the only construction by which constitutionality of the writ of certiorari provision of section 39 is not cast into serious doubt.  Any other construction would allow the Chuuk Legislature to override a Chuuk Constitutional provision by mere statute even though the Chuuk Constitution does not grant the Chuuk Legislature that power.  We would then be forced to rule the certiorari provision in section 39 unconstitutional.

     This conclusion is consistent with our appellate rules, which provide for civil appeals "from all final decisions . . . of the Chuuk State Court appellate division." FSM App. R. 4(a)(1)(A).  This conclusion is also consistent with our past practice. Since the effective date of the Chuuk Constitution we have had the occasion to review several petitions for a writ of certiorari directed to the Chuuk State Supreme Court.  The first petition we determined was not an appeal from a final decision of the Chuuk State Supreme Court appellate division and denied it.Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993) (attempted appeal from single justice order granting stay).  The second petition presented some difficulties as to whether the appeal was from a final decision of Chuuk State Supreme Court appellate division and we required briefing on the point.  Wainit v. Weno, 8 FSM Intrm. 28, 29 (App. 1997).  We granted it once we determined that it was from a final decision.  Id. at 30.  Unfortunately, this decision was a little under one year after the petition was filed.  The third petition was also granted once it was determined that it was from a Chuuk State Supreme Court appellate division final decision.  Chuuk v. Ham, 8 FSM Intrm. 467, 469 (App. 1998).  Although there was no question that this appeal was from a final decision it still took six months from the date the petition was filed until it was granted.  This petition is the fourth.  It was filed March 19, 1999.  The writ of certiorari is now issued.  A fifth petition was filed March 24, 1999.  The fifth petition was denied on June 18, 1999, almost three months afterward, because it was apparent that it was not an appeal from a final decision.  Chipen v. Election Comm'r of Losap, 9 FSM Intrm. 163 (App. 1999) (attempted appeal of single justice order denying stay or injunction).

     Only once the petition is granted, can the state appellate clerk begin the preparation of the record from which the parties will prepare their briefs in anticipation of oral argument and our decision on the merits of the appeal.  This lengthy delay is unnecessary.  If we explicitly recognize the standard of review we have actually used, and which is the only standard possible in light of the relevant constitutional provisions, this lengthy delay can be shortened to the ultimate benefit of the litigants and both courts.  A prima facie review of the petition and the Chuuk State Supreme Court appellate decision appealed from should ordinarily be enough to determine whether the writ should issue.  This should not be a lengthy process.  Thirty days should be ample.

     I further note that in cases appealed pursuant to article VII, section 4 of the Chuuk Constitution a final decision of the Chuuk State Supreme Court appellate division is necessary for the FSM Supreme Court appellate division to have subject matter jurisdiction.  Whether a court lacks subject matter jurisdiction is an issue that may be raised at any time.  Hartman v. FSM, 6 FSM Intrm. 293, 296 (App. 1993); Glidden Co. v. Zdanok, 370 U.S. 530, 535-37, 82 S. Ct. 1459, 1464-66, 8 L. Ed. 2d 671, 678-79 (1962) (jurisdictional defect could be raised for first time on appeal); Lamar v. United States, 241 U.S. 103, 117-18, 36 S. Ct. 535, 540, 60 L. Ed. 912, 918 (1916) (jurisdictional challenge heard and decided on its merits although the issue was first raised by a supplemental brief filed after the appellant's second request for U.S. Supreme Court review).  Thus if it should appear sometime after the writ had been granted that there was no subject matter jurisdiction ) the appeal was not from a

[9 FSM Intrm. 551]

final decision ) it would then be dismissed.  This has in fact happened.  When we later determined that Wainit v. Weno, 8 FSM Intrm. 28 (App. 1997) was not in fact an appeal from a final decision of the highest state court in which review could be had, we then dismissed that appeal.  Wainit v. Weno, 9 FSM Intrm. 160 (App. 1999).

     I would therefore make explicit that our standard of review of all future petitions for writs of certiorari directed to the Chuuk State Supreme Court appellate division is limited solely to whether it is an appeal from a final decision.  If it is from a final decision, the writ should then summarily issue.  This should expedite matters and eliminate unnecessary delay.

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CONCURRING OPINION
MARTIN YINUG, Associate Justice:
     I join Justice Benson's Concurrence in acknowledging the existence of an explicit, articulable standard of review by which to determine that we have jurisdiction over this Chuuk civil appeal coming before us on a petition for writ of certiorari.